Tervonen v Minister for Home Affairs

REASONS FOR JUDGMENT BUCHANAN J: 1 On 16 September 2008, sitting as the Duty Judge, I dismissed a notice of motion brought by Mr Tervonen which sought to challenge the third of three notices issued by a Minister under s 16 of the Extradition Act 1988 (Cth) ('the Act'). What follows are my reasons for doing so. 2 The matter has a complex history. Mr Tervonen is resisting extradition to Finland to face numerous allegations of fraud, forgery and related offences. The extradition process, which is conventionally regarded as proceeding in four stages (see Harris v Attorney-General (Cth) (1994) 52 FCR 386 ('Harris') at 389; Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 ('Kainhofer') at 547; Vasiljkovic v Commonwealth (2006) 227 CLR 614 at [55] and Minister for Home Affairs v Tervonen (2008) 166 FCR 91 at [9]) commenced when the Australian government, on 27 July 2006, received a request from Finland for the extradition of Mr Tervonen. 3 The extradition process includes the issue of a provisional arrest warrant under s 12 of the Act by a magistrate upon application on behalf of an extradition country, the issue of a notice under s 16 of the Act by the Attorney-General (or other responsible Minister), upon receipt of an extradition request from an extradition country, stating to a magistrate that the request has been received, the conduct of proceedings under s 19 of the Act by a magistrate to determine whether a person whose extradition is sought is eligible for surrender and finally a decision by the Executive Government that a person whose extradition is sought should be surrendered to the requesting country. 4 On 18 August 2006 the then Minister for Justice and Customs, Senator Ellison, issued a Notice of Receipt of Extradition Request under s 16(1) of the Extradition Act 1988 (Cth) ('the Act'). On 30 April 2007 Senator Johnston, who was then the Minister for Justice and Customs, issued an amended notice. On 6 June 2007 a magistrate determined, pursuant to s 19 of the Act, that Mr Tervonen was eligible for surrender for offences itemised in the amended notice issued on 30 April 2007. Mr Tervonen challenged the notices under s 16 and the determination of the magistrate under s 19. 5 On 6 November 2007 Rares J decided that each of the two notices was invalid (Tervonen v Minister for Justice and Customs [2007] FCA 1684). As a result, on 20 December 2007 Gyles J ordered that the magistrate's order made on 6 June 2007 be quashed (Tervonen v Finland [2007] FCA 2067). Appeals against the orders made by Rares J and Gyles J were later upheld. 6 Meanwhile, on 11 November 2007 a third notice was issued. Mr Tervonen commenced proceedings challenging the third notice on 18 December 2007. The proceedings commenced by Mr Tervonen to challenge the third notice were the subject of judgments by Flick J on 30 April 2008 (Tervonen v Minister for Home Affairs [2008] FCA 596) and 12 June 2008 (Tervonen v Minister for Home Affairs (No 2) [2008] FCA 872). After the appeal against the judgment of Rares J was upheld on 6 March 2008 it was unnecessary for the Minister to rely upon the third notice and Flick J records that the Minister gave an assurance that no reliance would be placed on it. In response, Mr Tervonen's counsel accepted that there was no utility in further pursuing any challenge to it. He sought on Mr Tervonen's behalf, and Mr Tervonen was granted, leave to discontinue the proceedings commenced on 18 December 2007. 7 Notwithstanding disposition of the proceedings in that way, and for those reasons, Mr Tervonen, on 3 September 2008, purported to file a notice of motion in the proceedings, directed only to the Minister, seeking the following order: '1. Leave to review a notice issued under s 16 of the Extradition Act 1988 (Cth) on 11 November 2007 in relation to the applicant.' 8 The notice of motion was not supported by an affidavit as required by the Federal Court Rules. It was not supported by any other form of evidence. 9 However, Mr Tervonen informed me that he had not authorised discontinuation of the proceedings by his counsel and he wished to renew his attack on the third notice. His desire to do so was based upon the proposition that after the judgment of Rares J there was no legal authority for his continued detention. He appeared to think that if he now successfully attacked the third notice that might assist his prospects of resisting extradition. Mr Tervonen should not be allowed to impeach the conduct of the earlier proceedings by his counsel, especially many months after the event. Furthermore, filing a notice of motion could not reinvigorate proceedings which had been discontinued. It was for those immediate reasons that I dismissed the notice of motion on 16 September 2008. 10 Moreover, Mr Tervonen has misunderstood the true basis for his continued detention after Rares J's decision on 6 November 2007. On 20 December 2007, when Gyles J set aside the magistrate's order of 6 June 2007, because the foundation for it had been removed by Rares J's orders, he made an order that Mr Tervonen be released from custody. On 21 December 2007 Finland commenced an appeal against Gyles J's orders and applied to the Duty Judge for an order for Mr Tervonen's arrest. Finland relied on s 21(6)(e) of the Act which provides for the arrest of a person released because a magistrate's order under s 19 has been quashed where an appeal has been filed. An order for Mr Tervonen's arrest was made on that day. 11 On 24 December 2007 Rares J refused an application by Mr Tervonen for bail under s 21(6)(f) of the Act and ordered that he be kept in custody until the appeal against Gyles J's order was heard. At the hearing of the appeal on 15 February 2008 the order was extended until determination of the appeal. The authority of the amended notice issued by Senator Johnson on 30 April 2007, on which the magistrate had relied, was confirmed on 6 March 2008 in related proceedings. As a result the appeal against Gyles J's orders, including the order that Mr Tervonen be released from custody, was also upheld on 6 March 2008. A further order for the arrest of Mr Tervonen was then made. 12 In those circumstances the attempt to reinstate a challenge to the third notice, upon which the Minister has placed no reliance, was misplaced and of no utility. The legal foundation for Mr Tervonen's detention, between the time that Rares J set aside the amended notice issued on 30 April 2007 and the decision of the Full Court that the amended notice was valid, was to be found in s 21 of the Act and was not, as Mr Tervonen thought, dependent upon the third notice. 13 On 12 June 2008 Flick J ordered that, without the prior leave of the Court, no proceedings were to be commenced by Mr Tervonen seeking to review the notice issued under s 16 of the Act on 11 November 2007. Although a judge of the Court gave leave to file the notice of motion which I have now dismissed, that order remains otherwise in force and effect. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.